Now, the Fourth Circuit has unilaterally hired a liberal proctor to oversee and supervise the state legislature in the new redistricting it previously mandated.

The federal courts’ abuse of North Carolina

Despite the wide perception that North Carolina Republicans engaged in egregious gerrymandering, they did nothing worse than Democrats did in the state for a century and have done in other states, such as Maryland. Yet unlike in Maryland, where the courts upheld the most outrageous gerrymander in the country, a three-judge panel within the Fourth Circuit and the Supreme Court struck down both the federal and state maps in the Tar Heel State.

It is first important to recognize that North Carolina received pre-clearance from Obama’s Justice Department, and the maps were upheld twice in state court. That should have ended the matter. Federal courts should have absolutely no jurisdiction over state legislative maps. Yet the federal courts nullified 28 legislative districts and remanded back to the three-judge panel, which includes two Obama-appointed judges.

The North Carolina legislature went back and drew a new, clean map that is better than anything Democrats put out when they had control for 100 years. That should have ended the matter. Yet the Obama judges, who have been accorded God-like power over subject matter the Constitution did not entrust to them, want to make sure the maps maximize the Democrat Party advantage. They gave standing to another lawsuit challenging three Senate and nine House districts. Last Thursday, in a written order, Judge Catherine Eagles wrote on behalf of the three-judge panel that she feels the new map doesn’t redress the “constitutional” violation and is “otherwise legally unacceptable” — in other words, it doesn’t contain enough Democrat advantages. So, in the ultimate act of legislating from the bench, the judge said that due to “the technical nature of determining an appropriate remedy” and “exceptional circumstances,” the court is appointing a “special master” to oversee the maps.

Thus, an unelected federal court with no constitutional jurisdiction over maps cleared by the DOJ and state courts is now requiring that de facto veto power over the new maps be given to an unelected “expert.” While this is not the first time officious federal courts have created a “special master,” the circumstances are particularly indefensible, given that the state has done everything properly until now.

The court promised a further detailed report to direct this special master on evaluating the map and, if necessary, drawing a new one.

Consequently, the judges are literally drawing legislative maps from the bench. The irony is lost on this judge that if this issue is too “technical” in nature, maybe she should stay out of it and follow the state and federal constitutions by having the legislature draw the map.

The Fourth Circuit becomes all three branches in one

Folks, this is how the federal judiciary has transmogrified itself from a judicial body into a super-legislature/executive hybrid. Federal courts can’t veto and most certainly can’t affirmatively direct public policy, especially not related to something as broad, abstract, and political as election maps. To begin with, the notion that a court can grant standing to a plaintiff to sue an election map violates the judicial requirement of legitimate cases and controversies. But this judge has gone a step further by downright legislating the creation of a de facto independent commission without the consent of the legislature. This is the same judge who ordered that North Carolina redo its legislative elections in middle of an odd year (it was later halted by the Supreme Court). We live in a banana republic.

Because the litigants couldn’t agree on the “master,” the super-executive court decided to pick Professor Nathaniel Persily, a man with a long resume who once worked for the liberal Brennan Center for Justice, among many other notches on his resume.

Is this how the Founders envisioned the judiciary? That one political party could take another party to court and subject their map to the final say of a federal judge of their party who appoints an unelected member of that same persuasion to babysit the map?

While legislative gerrymandering can be insidious, it is not nearly as tyrannical as judicial gerrymandering, which is unconstitutional and against which there is no remedy.

The federal representatives of North Carolina have an obligation to protect their state from the clutches of the Fourth Circuit the same way some in Arizona are attempting to do with the Ninth. The Fourth Circuit is very likely responsible for electing Gov. Roy Cooper because he won based on votes that, mandated by federal court, were invalid.

Short of disbanding the Fourth Circuit, here is a modest proposal. Putting the fight over federal districts on a shelf for now, why not at least amend the Voting Rights Act and devolve all litigation over state legislative districts to state courts? Most state courts are elected, are more familiar with the technicalities of redistricting, and deal with the state constitutions, which should be the sole arbiter of state districts.

Ironically, in 1788, North Carolina was reluctant to join the union because its leaders were concerned the new federal government would destroy their state. Their reluctance to join the federal union helped ensure that Congress immediately passed the Bill of Rights, which contained the Tenth Amendment, granting the states and the people power over everything outside the enumerated federal powers. In 1789, North Carolina leaders met again at Fayetteville and agreed to join the union after they were promised throughout the process by James Iredell that the president would have “no power of legislation” and that their federal representatives would stand up for the state. How tragic that now the weakest branch, the judiciary, has been granted legislative power over the state.

It’s time for North Carolina’s federal representatives to step up to the plate.

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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.